The Emergency is a desecration of the rule of law


It should be patently obvious by now that the Jan 11 proclamation of emergency and the ensuing Emergency (Essential Powers) Ordinance 2021 have primarily served to contain our Parliament, rather than the pandemic.

Repeated calls for the reconvening of Parliament, including by no less than the deputy speaker, have been ignored. Worse, the recent announcement by the home minister that Parliament will not convene until herd immunity is reached, not only insults our intelligence, but is alarming as it seems unlikely that herd immunity will be achieved any time soon.

Our Federal Constitution and indeed any functioning democracy based on the Westminster model provides for three arms of government namely, the legislature (Parliament), the executive, and the judiciary.

The doctrine of separation of powers ensures the necessary checks and balances between these three arms. Any attempt by one branch to unconstitutionally undermine another is a violation of this doctrine and must be resisted and rejected.

Article 150 of the Federal Constitution deals with the extreme measure of a proclamation of emergency. Article 150(3) is an important provision. It provides that the proclamation and any ordinance promulgated pursuant thereto “shall” be laid before both houses of Parliament.

The article further provides, amongst other things, that the proclamation and ordinance shall cease to have effect if resolutions are passed by both houses annulling such proclamation or ordinance. In other words, the proclamation and ordinance must receive parliamentary oversight and scrutiny.

Although no time period is provided for, the proclamation and emergency ordinance must be laid before both houses, as soon as is practicable or reasonably possible.

Over four months have passed since the proclamation and neither it nor the emergency ordinance has been laid before Parliament. This is way past what is reasonable or practicable, more so since the proclamation is due to expire on August 1.

This blatant disregard for a key constitutional provision means that the vital check and balance that it has provided for when an emergency is declared, is wiped out. A key function of one arm of government has been completely disabled. I cannot think of a greater assault on the constitution than this.

All MPs take an oath to “preserve, protect and defend” the Federal Constitution. Any departure from that is a violation of this sacred oath. Judges too have taken the same oath in relation to the constitution. So important is the commitment to the constitution that even the king takes an oath to inter alia carry out duties in accordance with the laws and constitution of the nation.

The government seems to believe that their actions are insulated from judicial oversight due to provisions in the constitution and emergency ordinance (called ouster clauses) that do not allow the courts to scrutinise them on certain matters.

That does not, in my view include the failure to comply with Article 150(3) which is a mandatory, constitutional provision and the ouster clauses would therefore not apply.

Furthermore, ouster clauses have not stopped the courts from intervening in circumstances where an exercise of power by the government violates the very substance, or, undermines, the basic structure, of the Federal Constitution or where it is illegal or irrational or an abuse of power.

This is an appeal to the prime minister and the cabinet. It is a constitutional requirement that the proclamation and emergency ordinance be laid before Parliament and it must be done at once.

Failure to do so will be met with an argument that both the proclamation and the emergency ordinance are invalid on these grounds alone.

AMBIGA SREENEVASAN is former Malaysian Bar president.